Madhya Pradesh High Court
Sardar Nirmal Singh vs Dist. Commerce And Industrices Center … on 1 May, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:9666
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 1 st OF MAY, 2025
CIVIL REVISION No. 117 of 2021
SARDAR NIRMAL SINGH
Versus
DIST. COMMERCE AND INDUSTRICES CENTER GWALIOR AND
OTHERS
Appearance:
Shri K.N. Gupta - learned Senior Counsel with Shri Sameer Kumar
Shrivastava- Advocates for the applicant.
Shri Abhisehk Singh Bhadauria- Advocate for the respondent no.1.
Shri Prabhat Pateriya- Dy. Government Advocate for the respondent
no.2/State.
ORDER
The applicant who is defendant no.1 before the Trial Court has filed
this Civil Revision under Section 115 of Code of Civil Procedure
challenging the order dated 22.12.2020 passed by Third Civil Judge, Class-I,
Gwalior (M.P.) in Civil Suit No.86-A of 2019 whereby his application under
Order 7 Rule 11 CPC has been rejected.
[2]. The suit before the Trial Court has been filed by respondent no.1 –
District Commerce and Industries Centre, Gwalior (M.P.) praying for
declaration that the plaintiff is the sole owner having title and possession of
the suit property; a declaration that the judgment and decree dated
03.03.2004 passed by Tenth Civil Judge, Class-II, Gwalior (M.P.) in the suit
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filed by applicant is not binding on it and the same is null and void, as the
judgment and decree was obtained by suppressing material facts, by playing
fraud and in collusion with defendant no.1 of the said suit. The respondent
no.1 has also prayed for a decree of permanent injunction restraining the
applicant from taking any action pursuant to the judgment and decree dated
03.03.2004.
[3]. For convenience, the applicant is referred to as defendant and non-
applicant no.1 is referred to as plaintiff in this order.
[4]. The facts giving rise to the present litigation is that the defendant
herein had earlier filed a civil suit impleading State of Madhya Pradesh
through Collector, Gwalior (M.P.) as defendant praying for a relief of
declaration of his title and for permanent injunction restraining the
defendants therein from interfering with his possession over the suit
property. The said suit was subject matter of Civil Suit No.33-A/2001 and
was decreed vide judgment and decree, dated 03.03.2004, (Annexure P/5).
The said judgment and decree was challenged by the State of Madhya
Pradesh, the defendant therein, in Civil Appeal No.19-A of 2004 which was
dismissed by the First Appellate Court vide judgment and decree, dated
05.07.2004, (Annexure P/6). The matter was taken to this Court in S.A.
No.109 of 2005 which also suffered dismissal vide judgment & decree, dated
30.08.2010, (Annexure P/7). Thereafter, the SLP was filed by the State of
M.P. which came to be dismissed on the ground of limitation vide order,
dated 03.01.2012 (Annexure P/9).
[5]. After the said judgment and decree dated 03.03.2004, attained
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finality up to the Apex Court, it appears that the defendant herein initiated
proceedings for mutation of his name in the revenue records. At this stage,
the plaintiff Department has filed the present suit. The cause of action
pleaded in the plaint is when it received the notice from Naib Tehsildar ,
Gwalior (M.P.) for appearance on 08.11.2016, it gathered the knowledge
about passing of the aforesaid judgment and decree.
[6]. The defendant thereafter filed the application under Order 7 Rule
11 CPC (Annexure P/3). The rejection of the plaint was sought on the ground
that the suit is barred under Order 7 Rule 11(d) CPC inasmuch as the
judgment and decree, dated 03.03.2004, passed in suit filed by the defendant
has attained finality up to the Apex Court and pursuant thereto, his name has
been recorded in the revenue records. It is stated in the application that the
plaintiff is bound by the aforesaid judgment and decree and the present suit is
barred by principles of res judicata. It is further stated in the application that
the plaintiff is not in actual possession of the suit property and on the
contrary, the defendant is in possession of the property as owner and,
therefore, the present suit, being a suit for declaration simplicitor is not
maintainable in view of provisions of Section 34 of the Specific Relief Act.
[7]. This application was opposed by the plaintiff by filing reply. The
learned Trial Court has rejected the application vide impugned order holding
that the issue of res judicata is a mixed question of fact and law and the same
cannot be decided at this stage. It is further held that since plaintiff has
alleged that it is in possession of the suit property, provisions of Section 34
of Specific Relief Act are also not attracted at this stage.
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[8]. The learned Senior Counsel for the defendant taking this Court
through the judgment and decree, dated 03.03.2004, and the judgments
passed in First Appeal, Second Appeal, SLP and the Review Petition filed by
the State of Madhya Pradesh, submitted that in view of categorical finding in
the earlier civil suit that applicant is the owner in possession of suit land, the
present suit is hit by principles of res judicata and is liable to be dismissed. It
is his submission that that in view of Section 57 of M.P. Land Revenue
Code, since all land belongs to State of Madhya Pradesh, which was a
defendant in the earlier suit, the judgment and decree would bound the
plaintiff also. He placed reliance upon judgments rendered in the case of T.
Arivandandam Vs. T.V. Satyapal and Anr. reported in AIR 1977 SC 2421,
Karim Bhai Vs. State of Maharashtra reported in ILR 2009 MP 3167 .
Placing reliance upon the judgment of this court in the case of Pana Bai and
Ors. Vs. State of M.P. reported in 2019(4) MPLJ 447, he also submitted that
the plaintiff is not the juristic person and has no legal right over the suit
property and in absence of such legal right, the suit is liable to be dismissed.
[9]. On the other hand, learned counsel for the plaintiff vehemently
opposed the submissions made by learned senior counsel for the defendant.
He submits that the issue of res judicata cannot be decided at the preliminary
stage of the suit without considering the pleadings, the evidence and
judgment passed in the earlier civil suit. He further submits that the present
suit has been filed by plaintiff Department challenging the judgment and
decree passed in earlier suit alleging fraud, suppression of material facts and
collusion between the parties therein, therefore, the principles of res judicata
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would not be applicable. He further submitted that in earlier suit, there is
apparent collusion between the counsel appeared for the parties which has
been observed by this Court in the order, dated 23.08.2018, passed in W.P.
No.8040 of 2016 (Annexure P/18). The learned counsel for the plaintiff
further submitted that the issue of fraud, collusion and suppression of
material facts being the question of facts cannot be decided at this stage. He
placed reliance upon the various judgments of Apex Court which shall be
referred to hereinafter at the appropriate stage.
[ 1 0 ] . It is worth mentioning here that the defendant filed the
application invoking provisions of clause (d) of Order 7 Rule 11 CPC which
provides of rejection of plaint when the suit is shown to be barred by any law
from the statement in the plaint. It is his specific case that the suit is barred
by principles of res-judicata by virtue of judgment and decree, dated
03.03.2004, passed in earlier suit. The legal principle that while considering
the application under Order 7 Rule 11 CPC, the averments made in plaint
alone are required to be seen is well settled. It is also equally well settled that
the issue of res-judicata is a question of fact which can be decided only after
considering the pleadings, issues, evidence and judgment passed in earlier
lis. The judgment rendered by Apex Court in the case of Srihari Hanumandas
Totala Vs. Hemant Vithal Kamat & Ors. reported in (2021) 9 SCC 99 can be
profitably relied upon in support of above legal principles. The Apex Court
held in para 20 as under:
“20. The Court further held: (Kamala case, SCC p. 669, paras
23-25)
“23. The principles of res judicata, when attracted,
would bar another suit in view of Section 12 of theSignature Not Verified
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Code. The question involving a mixed question of law
and fact which may require not only examination of the
plaint but also other evidence and the order passed in
the earlier suit may be taken up either as a preliminary
issue or at the final hearing, but, the said question
cannot be determined at that stage.
24. It is one thing to say that the averments made in the plaint
on their face discloses no cause of action, but it is another
thing to say that although the same discloses a cause of
action, the same is barred by a law.
25. The decisions rendered by this Court as also by various
High Courts are not uniform in this behalf. But, then the
broad principle which can be culled out therefrom is that the
court at that stage would not consider any evidence or enter
into a disputed question of fact or law. In the event, the
jurisdiction of the court is found to be barred by any law,
meaning thereby, the subject-matter thereof, the application
for rejection of plaint should be entertained.” (emphasis
supplied)[11]. It has been held that the decision on issue of res-judicata is
beyond the purview of Order 7 Rule 11 CPC where only the statement of
plaint is required to be seen. The evidence in the case is yet to be led by
parties wherein the pleadings, evidence and judgment of earlier suit will have
to be proved. Further, the judgment and decree passed in earlier suit, which is
upheld upto Apex Court, is the defendant’s defence which cannot be
considered while considering the application under Order 7 Rule 11(d) CPC.
Thus, at this stage, rejecting the plaint by considering the defendant’s defence
is again impermissible.
[12]. Another ground raised by learned counsel for plaintiff that in the
present suit, the judgment and decree passed in earlier suit is challenged on
the ground of fraud, collusion and suppression of material fact. A bare
perusal of the plaint, it is gathered that at more than on places, the allegationSignature Not Verified
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of fraud, collusion and suppression of material facts has been pleaded. It has
been pleaded that the suit land, alongwith other land, was allotted to plaintiff
Department by erstwhile Revenue Department vide Gwalior Gazette
Notification, dated 27.01.1945, after acquiring the land from its earlier
owner. The plaintiff Department also claims to be in possession of the suit
land. It is also pleaded that the plaintiff Department thereafter granted the suit
land to one J.B. Mangaram & Co. on lease for a period of 99 years and the
possession was handed over to the said Company. Referring to judgment and
decree, dated 03.03.2004, passed by learned Trial Court in earlier suit, in
paragraph-14, it is pleaded that even though it was brought to the knowledge
of the learned Trial Court that suit property is recorded in the name of
plaintiff Department, it was not impleaded as party and the objection raised
was rejected only by observing that no documentary evidence has been
placed on record. The allegations made in the plaint are serious questions of
fact which needs to be decided only after taking evidence of both sides.
[13]. It is worth mentioning here that earlier the defendant approached
this Court by filing W.P. No.8040 of 2016 seeking a direction to the
Government authorities to mutate his name in the revenue records on the
strength of judgment and decree, dated 03.03.2004. This court while
dismissing the writ petition vide order, dated 23.08.2018, made serious
observations with regard to collusion between the parties. The observations
made by this Court being relevant are reproduced hereunder:
“It is pointed out that this is a litigation which is being
contested in connivance of certain counsel. It is pointed out
that from the decree in original as was drawn in civil suit
No.33-A/01 from the judgment dated 3.3.04, it is apparentSignature Not Verified
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that plaintiff was represented by one Mohan Mangal,
whereas defendant/State was represented by Surendra Saxena
who was a Government advocate at that point of time. It is
pointed out that son of Surendra Saxena, namely Manish
Saxena was appearing for the plaintiff Sardar Nirmal Singh
in Case No.434-A/15 ED (Execution Case) pending before
the Court of 1st Civil Judge, Class II, Gwalior, as is apparent
from Annexure P/27. It is pointed out that similarly from
Annexure P/29, reply filed on behalf of the objectors, it is
apparent that same Manish Saxena son of Surendra Saxena is
representing the plaintiff. Pointing out such conduct of
learned counsel for the State, who had represented the State
in the civil suit, and that of his ward who is part of the
chamber of Shri Surendra Saxena, it is submitted that there is
connivance between the plaintiff and the counsel for the
State, and therefore, correct facts were not placed before the
concerned Courts due to such connivance of learned counsel
for the State who represented the State in the civil suit and
the plaintiff.”
[14]. The legal principle that where a judgment and decree is obtained
by practicing fraud, the principle of res-judicata would not apply, is also well
settled. The learned counsel for plaintiff has referred to very many judgments
of Apex Court as also of this Court in support of his submission. However,
instead of referring to all such judgment, reference to some of those would
be sufficient as the same principle of law is laid down in all the cases. The
Apex Court in the case of Ram Chandra Singh Vs. Savitri Devi And Ors.
reported in (2003) 8 SCC 319 held in para 31 as under:
“31. In Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth
Hiralal 1962 AIR(SC) 527 , the law is stated in the following
terms:
“The Code of Civil Procedure is undoubtedly not exhaustive:
it does not lay down rules for guidance in respect of all
situations nor does it seek to provide rules for decision of all
conceivable cases which may arise. The civil courts are
authorized to pass such orders as may be necessary for the
ends of justice, or to prevent abuse of the process of court,Signature Not Verified
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but where an express provision is made to meet a particular
situation the Code must be observed, and departure therefrom
is not permissible.”
[15]. Again in the case of Bhaurao Dagdu Paralkar vs State Of
Maharashtra And Ors reported in (2005) 7 SCC 605 , the Apex Court held in
para 12 as under:
“12. In Shrisht Dhawan Vs. Shaw Bros., it was observed as
follows: (SCC p. 553, para 20)
“Fraud and collusion vitiate even the most solemn
proceedings in any civilized system of jurisprudence. It is a
concept descriptive of human conduct. Michael levi likens a
fraudster to Milton’s sorcerer, Comus, who exulted in his
ability to, ‘wing me into the easy-hearted man and trap him
into snares’. It has been defined as an act of trickery or
deceit. In Webster’s Third New International
Dictionary “fraud” in equity has been defined as an act or
omission to act or concealment by which one person obtains
an advantage against conscience over another or which
equity or public policy forbids as being prejudicial to
another. In Black’s Legal Dictionary, “fraud” is defined as an
intentional perversion of truth for the purpose of inducing
another in reliance upon it to part with some valuable thing
belonging to him or surrender a legal right; a false
representation of a matter of fact whether by words or by
conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed, which
deceives and is intended to deceive another so that he shall
act upon it to his legal injury. In Concise Oxford Dictionary,
it has been defined as criminal deception, use of false
representation to gain unjust advantage; dishonest artifice or
trick. According to Halsbury’s Laws of England, a
representation is deemed to have been false, and therefore a
misrepresentation, if it was at the material date false in
substance and in fact. Section 17 of the Contract Act defines
“fraud” as act committed by a party to a contract with intent
to deceive another. From dictionary meaning or even
otherwise fraud arises out of deliberate active role of
representator about a fact which he knows to be untrue yet he
succeeds in misleading the representee by making him
believe it to be true. The representation to become fraudulentSignature Not Verified
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must be of the fact with knowledge that it was false. In a
leading English case i.e. Derry v. Peek what constitutes fraud
was described thus: (ALL ER p. 22 B-C)‘Fraud is proved when it is shown that a false representation
has been made (i) knowingly, or (ii) without belief in its
truth, or (iii) recklessly, careless whether it be true or false’.”
But “fraud” in public law is not the same as “fraud” in private
law. Nor can the ingredients, which establish “fraud” in
commercial transaction, be of assistance in determining fraud
in Administrative Law. It has been aptly observed by Lord
Bridge in Khawaja v. Secretary of State for Home Deptt. that
it is dangerous to introduce maxims of common law as to
effect of fraud while determining fraud in relation of
statutory law. “Fraud” in relation to statute must be a
colourable transaction to evade the provisions of a statute.
“If a statute has been passed for some one particular
purpose, a court of law will not countenance any
attempt which may be made to extend the operation of
the Act to something else which is quite foreign to its
object and beyond its scope. Present day concept of
fraud on statute has veered round abuse of power or
mala fide exercise of power. It may arise due to
overstepping the limits of power or defeating the
provision of statute by adopting subterfuge or the power
may be exercised for extraneous or irrelevant
considerations. The colour of fraud in public law or
administration law, as it is developing, is assuming
different shades. It arises from a deception committed
by disclosure of incorrect facts knowingly and
deliberately to invoke exercise of power and procure an
order from an authority or tribunal. It must result in
exercise of jurisdiction which otherwise would not have
been exercised. The misrepresentation must be in
relation to the conditions provided in a section on
existence or non-existence of which the power can be
exercised. But non-disclosure of a fact not required by a
statute to be disclosed may not amount to fraud. Even
in commercial transactions non-disclosure of every fact
does not vitiate the agreement. “In a contract every
person must look for himself and ensures that he
acquires the information necessary to avoid bad bargain.
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In public law the duty is not to deceive. (See Shrisht
Dhawan v. M/s. Shaw Bros. SCC p. 554, para 20.)”
[16]. Apex Court in somewhat similar circumstances dealt with the
issue of res-judicata in cases where earlier judgment is challenged on
allegation of fraud, in the case of A.V. Papayya Sastry & Ors Vs.
Government Of A.P. & Ors. reported in (2007) 4 SCC 221 and held in para
35 & 36 as under:
“35. In this connection, our attention has been invited by the
learned counsel to a decision of this Court in Abbai Maligai
Partnership Firm & Anr. Vs. K. Santhakumaran & Ors., In
that case, after dismissal of Special Leave Petition by this
Court, review petition was entertained by the High Court and
earlier judgment was recalled. When the matter reached this
Court, setting aside the order passed by the High Court, the
Court observed:(SCC pp. 387-88, para 4)
“4. The manner in which the learned Single Judge of the
High Court exercised the review jurisdiction, after the
special leave petitions against the self-same order had
been dismissed by this court after hearing learned
counsel for the parties, to say the least, was not proper.
Interference by the learned single Judge at that stage is
subversive of judicial discipline. The High Court was
aware that SLPs against the orders dated 7.1.1987 had
already been dismissed by this court. This High Court,
therefore, had no power or jurisdiction to review the self
same order, which was the subject matter of challenge
in the SLPs in this court after the challenge had failed.
By passing the impugned order on 7.4.1994, judicial
propriety has been sacrificed. After the dismissal of the
special leave petitions by this court, on contest, no
review petitions could be entertained by the High Court
against the same order. The very entertainment of the
review petitions, in the facts and circumstances of the
case was an affront to the order of this Court. We
express our strong disapproval and hope there would be
no occasion in the future when we may have to say so.
The jurisdiction exercised by the High Court, under the
circumstances, was palpably erroneous. The respondentsSignature Not Verified
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who approached the High Court after the dismissal of
their SLPs by this court, abused the process of the court
and indulged in vexatious litigation. We strongly
depricate the manner in which the review petitions were
filed and heard in the High Court after the dismissal of
the SLPs by this court.” (emphasis
supplied)
36. The respondents, on the other hand, placed reliance upon
Kunhayammed & Ors. vS. State of Kerala & Anr. , wherein
this Court had an occasion to consider the application of the
doctrine of merger to orders passed by this Court while
exercising jurisdiction under Article 136 of the Constitution.
The Court there observed that exercise of jurisdiction by this
Court under Article 136 is in two stages; (i) granting of a
special leave to appeal; and (ii) hearing of appeal. The Court
went on to observe that the doctrine of merger does not apply
to first stage i.e. at the stage of granting of special leave to
appeal. It applies only at the second stage of hearing of
appeals. The Court in the light of above position, laid down
the following principles: (SCC pp.383-84, para 44)
“44. (i) Where an appeal or revision is provided against
an order passed by a court, tribunal or any other
authority before superior forum and such superior
forum modifies, reverses or affirms the decision put in
issue before it, the decision by the subordinate forum
merges in the decision by the superior forum and it is
the latter which subsists, remains operative and is
capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the
Constitution is divisible into two stages.
First stage is upto the disposal of prayer for special
leave to file an appeal. The second stage commences if
and when the leave to appeal is granted and special
leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or
unlimited application. It will depend on the nature of
jurisdiction exercised by the superior forum and the
content or subject-matter of challenge laid or capable of
being laid shall be determinative of the applicability of
merger. The superior jurisdiction should be capable of
reversing, modifying or affirming the order put in issue
before it. Under Article 136 of the Constitution the
Supreme Court may reverse, modify or affirm the
judgment-decree or order appealed against while
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exercising its appellate jurisdiction and not while
exercising the discretionary jurisdiction in disposing of
petition for special leave to appeal. The doctrine of
merger can therefore be applied to the former and not to
the latter.
(iv) An order refusing special leave to appeal may be a
non-speaking order or a speaking one. In either case it
does not attract the doctrine of merger. An order
refusing special leave to appeal does not stand
substituted in place of the order under challenge. All
that it means is that the Court was not inclined to
exercise its discretion so as to allow the appeal being
filed.
(v) If the order refusing leave to appeal is a speaking
order, i.e. gives reasons for refusing the grant of leave,
then the order has two implications. Firstly, the
statement of law contained in the order is a declaration
of law by the Supreme Court within the meaning of
Article 141 of the Constitution. Secondly, other than the
declaration of law, whatever is stated in the order are
the findings recorded by the Supreme Court which
would bind the parties thereto and also the court,
tribunal or authority in any proceedings subsequent
thereto by way of judicial discipline, the Supreme Court
being the apex court of the country. But, this does not
amount to saying that the order of the court, tribunal or
authority below has stood merged in the order of the
Supreme Court rejecting special leave petition or that
the order of the Supreme Court is the only order binding
as res judicata in subsequent proceedings between the
parties,
(vi) Once leave to appeal has been granted and appellate
jurisdiction of Supreme Court has been invoked the
order passed in appeal would attract the doctrine of
merger; the order may be of reversal, modification or
merely affirmation.
(vii) On an appeal having been preferred or a petition
seeking leave to appeal having been converted into an
appeal before Supreme Court the jurisdiction of High
Court to entertain a review petition is lost thereafter as
provided by Sub-rule (1) of Rule (1) of Order 47 of the
C.P.C.”
[17]. Thus, in the case in hand, the judgment and decree, dated
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03.03.2004, has been challenged on the ground of fraud, collusion and
suppression of material fact. Therefore, rejecting the plaint under Order 7
Rule 11(d) CPC on the principle of res-judicata is not permissible.
[18]. The argument of learned Senior Counsel for defendant that the
allegations made in plaint are not sufficient to constitute fraud is also not
acceptable at this stage inasmuch as it is the job of learned Trial Court to
appreciate pleadings alongwith evidence at appropriate stage of suit. The
judgment relied upon by defendant’s counsel in the case of Pana Bai (supra)
is of no help to him as the issue regarding impleadment of proper party and
the plaintiff being bound by earlier judgment, would be secondary. Another
judgment in the case of T. Arivandandam (supra) is rendered on the
application filed under Order 7 Rule 11(a) CPC and is therefore, would not
apply in the facts of the present case. Further, the judgment rendered by this
Court in the case of Karim Bhai (supra) was a case where this Court found
from the plaint averments itself that the same is vexatious and frivolous
litigation being filed by purchaser pendenti lite. Further, in view of
judgments of Apex Court referred hereinbefore to say that the principle
o f res-judicata cannot be decided at the stage of considering application
under Order 7 Rule 11 CPC, the judgement of this Court in the case of Karim
Bhai (supra) cannot be relied upon.
[19]. The learned counsel for parties made lengthy arguments with
regard to findings recorded in earlier litigations. However, this court refrains
from making any observation in this regard in this case and leave it to the
learned Trial Court to advert to the same at the appropriate stage of the suit.
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It is also made clear that the observations by this court in this order is made
only for purposes of decision on application under Order 7 Rule 11 CPC and
would not adversely affect the case of either of the party in the civil suit.
[20]. In view of the discussion made above, this Court is of considered
opinion that the learned Trial Court has not committed any illegality in
passing the impugned order. The same is upheld. The civil revision is
accordingly, dismissed.
(ASHISH SHROTI)
JUDGE
vpn/-
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